Bill O'Reilly falsely stated that decisions made by the U.S. Court of Appeals for the 9th Circuit are being overturned by the Supreme Court at a "record rate." In fact, over the past four terms, the 9th Circuit's reversal rate was near the average for all circuits, and during the 2004-05 term, three other circuit courts were reversed by the Supreme Court at a higher rate than the 9th Circuit.

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On the December 12 edition of The O'Reilly Factor, Fox News host Bill O'Reilly falsely stated that decisions made by the U.S. Court of Appeals for the 9th Circuit are being overturned by the Supreme Court at a "record rate," while Fox News senior judicial analyst Andrew P. Napolitano declared the 9th Circuit court "beholden to Hollywood." In fact, during its 2004-05 term, three other circuit courts were reversed by the Supreme Court at a higher rate than the 9th Circuit. Moreover, in the three terms prior to the 2004-05 term, the percentage of cases the Supreme Court reversed from those appealed by the 9th Circuit was almost identical to the national average for federal circuit courts -- either slightly higher or slightly lower.*

The 9th Circuit, also known as the Western circuit, is headquartered in San Francisco but also has courtrooms in Pasadena, California; Portland, Oregon; and Seattle.

In an on-air discussion with O'Reilly, Napolitano, a former New Jersey Superior Court judge, accused the judges who sit on the 9th Circuit of being "beholden to Hollywood." He said that the appeals court judges are "typical liberals in that they think they know better than people do. They second-guess jurors because they believe they're smarter than jurors. They second-guess prosecutors. They second-guess public defenders and defense counsel." Second-guessing -- or reviewing -- lower court actions is, in fact, the function of an appellate court.

As Media Matters for America has documented (here, here and here), the 9th Circuit's reversal rate of 76 percent during the 2003-04 Supreme Court term was virtually the same as the national average of 77 percent for all circuit courts. Likewise, the percentage of reversals -- 75 percent -- of 9th Circuit decisions for the 2002-03 Supreme Court term was almost the same as the national average of 73 percent for the total number of federal circuit court cases reviewed. For the 2001-02 term, the 9th Circuit's reversal rate was 76 percent while the national average was 78 percent. During the 1990s, however, the 9th Circuit's reversal rate did exceed the national average, most notably during the 1996-97 term, when the court's 95-percent reversal rate topped the national average of 71 percent and "earned the Western circuit its reputation as the nation's 'most reversed,' " according to a July 3, 2004, article in the Sacramento Bee.

During its 2004-05 term, the Supreme Court reversed 84 percent of the cases it chose to hear from appeals of 9th Circuit decisions, compared to a 73-percent average reversal rate for all circuit courts of appeals. But the high court reversed 100 percent of the decisions it heard from the 1st, 2nd, and 10th circuits.* Circuit court reversals in the 2004-05 term rank as follows:

Circuit

Cases Taken

Cases reversed

Reversal

rate

1st

4

4

100%

2nd

2

2

100%

10th

3

3

100%

9th

19

16

84%

3d

4

3

75%

8th

4

3

75%

5th

7

5

71%

4th

3

2

67%

6th

11

7

64%

7th

2

1

50%

11th

10

5

50%

These differences in percentages, however, are not substantively significant given the limited number of cases the Supreme Court chooses to review, resulting in comparisons of very small numbers. For instance, in the 2004-05 term, the Supreme Court heard 19 cases appealed from the 9th Circuit, reversing 16 of those decisions; the high court reversed all four cases it heard from the 1st Circuit and the two cases it heard from the 2nd Circuit. The 7th Circuit had one of its two cases reversed; with five of 10 cases reversed, the 11th Circuit had, along with the 7th Circuit, the lowest percentage -- but not the lowest number -- of cases reversed.

Because the 9th Circuit carries a larger caseload than any appellate court in the nation, critics of the Western circuit often express its reversal rate in absolute numbers rather than percentages. When expressed in absolute numbers, the 9th Circuit logically experiences the largest number of reversals by the Supreme Court. In 2004, the court disposed of 12,600 cases, leaving 14,900 still pending. By comparison, the 5th Circuit, which carries the second-largest federal appellate caseload, disposed of 7,700 cases, leaving 5,700 pending.

From the December 12 edition of Fox News' The O'Reilly Factor:

NAPOLITANO: The 9th Circuit, for historical reasons, has gathered most of the liberal judges. It is far and away more left-wing than all the other circuit courts in the country. They are beholden to Hollywood. They are typical liberals in that they think they know better than the people do. They second-guess jurors because they believe they're smarter than jurors. They second-guess prosecutors. They second-guess public defenders and defense counsel. They're looking for every little opportunity they can --

O'REILLY: And you can find -- you can find an ample opportunity in any criminal case.

NAPOLITANO: I also think there's some political ideology here. I think many of the judges of the 9th Circuit who have been reversing these convictions have been on death penalty cases where they don't believe in the death penalty.

O'REILLY: Do they try to impose their view?

NAPOLITANO: Absolutely.

O'REILLY: What can the Supreme Court do?

NAPOLITANO: The Supreme Court can enforce literally an act written by the Congress in 1996 which says when a federal court -- the 9th Circuit -- reviews a state prosecution, it starts with the presumption that the prosecution was valid, appropriate and fair. The 9th Circuit seems to be applying the pre-'96 mentality when federal judges were literally permitted to second-guess their state court counterparts. Congress put a stop to that, but the 9th Circuit hasn't done so.

O'REILLY: But the Supreme Court already overturned 75 percent of the cases from the 9th that it gets. Can it get anything other than continue to overturn at a record rate?

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